Impeachment lite [Editorial]

Jul 31, 2014 | 2:27 PM

It's a measure of how bitter the partisan divide in Washington has become that yesterday House Republicans voted overwhelmingly to authorize Speaker John Boenher to bring a lawsuit against President Barack Obama for failing to enforce a provision of the health care law that those same lawmakers have voted to repeal scores of times. Dislike of Mr. Obama runs so deep in the House Republican caucus that members are even willing to vote against their own interests if they think it will hurt the president.

At issue is a section of the Affordable Care Act that requires businesses with at least 50 employees to provide them with health coverage or face a stiff fine. But the president has used his power to issue executive orders to delay that requirement. Administration officials said more time was needed to simplify the rules under which employers report health plan enrollment information to the government. Mr. Boehner charges that the president's use of an executive order in that case amounted to Mr. Obama picking and choosing which laws he would enforce and which laws he wouldn't.

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Members of Congress have sued presidents before, but this appears to be the first time an entire chamber has officially voted to do so. Previous suits have been singularly unsuccessful, largely because of the legal principle of "standing" — that is, the requirement that the plaintiff in a suit demonstrate that he or she has specifically been harmed by the defendant's action. It would be interesting to hear House Republicans explain how they have been harmed by the president's refusal to enforce a provision they almost universally detest. The only hope that the courts will even begin to hear the merits of this case rely on untested and novel legal theories to overcome the judiciary's long-established aversion to getting involved in political disputes between the other two branches of government. Under those circumstances, and given the likelihood that any final resolution would have to be made by the Supreme Court, there is little chance that the House could get its way before the delay for the provision in question expires, or possibly even before the next president is sworn in.

Where's the sense in that, except to throw red meat to the party's conservative base as a way of tamping down demands for even more radical action, such as the calls for the impeachment of Mr. Obama emanating from tea party stars like former Alaska Gov. Sarah Palin and the right-wing talking heads on Fox News?

Mr. Boehner, who can read the polls as well as anyone else, surely knows talk of impeaching the president is a non-starter with the American public. He also remembers the drubbing Republicans took in the midterm elections after a similar GOP attempt to unseat former President Bill Clinton failed in 1998. In fact, as Rep. Paul Ryan and others have noted, the person most enthusiastically talking about the possibility that Republicans might try to impeach President Obama is President Obama. Right now Republicans are positioned to hold onto their majority in the House and perhaps even win control of the Senate if things go right for them. Talk of impeachment would only distract from that effort while at the same time providing the motivation for millions of Democrats who don't ordinarily vote in midterm elections to go to the polls to defend the president.

Mr. Boehner may be calculating that a lawsuit is just enough of a provocation to rouse GOP voters to the polls but not enough to give Democrats an issue they can use to rally their troops and fundraising efforts. Suing the president is a kind of safety valve that allows the hotheads in his caucus to let off steam short of creating a situation that might damage the Republican brand in November.

Nonetheless, the lawsuit runs the risk of reminding the millions of voters who turned out twice to elect Mr. Obama that a large segment of the Republican Party considers him not just a bad president but as somehow illegitimate, a strain of thinking that goes back to the birther nonsense early in his term and has carried forward with cries that he is some sort of closet subversive bent on the destruction of America as we know it.

There are signs that is already happening. Democratic operatives report their party's fundraising has increased drastically since Mr. Boehner announced his intention to sue the president, with millions going to mobilize a massive get-out-the-vote campaign among core Democratic constituencies. Meanwhile, Mr. Obama has all but dared Mr. Boehner to sue him for doing his job. The speaker may once have thought that hauling the president into court was a relatively risk-free way for the GOP to snipe at the White House in an off-year election, but as the contest shapes up for the fall it may happen that Republicans turn out to be their own worst enemies.